Further Discussion of Gay Marriage

Here Ryan Puzycki and I continue our previous discussion regarding gay marriage and Colorado’s Amendment 43, which defines “marriage” as between a man and woman. To review briefly, we both agree that gay couples should have the ability to contract as heterosexual couples do in romantic unions. However, while Puzycki believes that Amendment 43 should be overturned by the courts, I’m not so sure.

Following is Puzycki’s reply of February 19:

Thanks for your response post.

In asserting that Amendment 43 should be overturned “[b]ased on the religious motivations,” I was reiterating my own interpretation of the Amendment. As I understand it, it does not seem to have any secular foundation and seems to rise only from religious beliefs, but the language of the Amendment itself is not religious in nature. So, I agree that this would be difficult to overturn on the establishment clause. But, if the Amendment is interpreted to allow only for “marriages” with no provision for “domestic partnerships,” then a very strong argument would still have to be invented to defend a possible secular foundation for why homosexual couples should not be afforded any partnership rights.

However, even if we consider the possible allowance for domestic partnerships, then we would have to explain the need to create “domestic partnerships” apart from “marriage.” You have suggested as a “plausible argument” the potentiality of heterosexual marriages to result in children. Notwithstanding the facts you mentioned that homosexual couples can adopt and use artificial insemination, Diana Hsieh already made the valid point that procreation is not an acceptable basis for marriage. As for the historical nominalist argument, that is easily dismissed, as well. I have still heard no secular arguments that stand on their feet.

So, what justification does the government have for establishing a “marriage” for heterosexual couples and a “domestic partnership” for homosexual couples? Even if marriages and domestic partnerships afforded the same rights to couples of either sexual orientation, one must ask why it is necessary for the government to make a legal distinction between straights and gays. As I wrote in my earlier email, “separate” implies inequality–or why else make the distinction? The establishment of “domestic partnerships” would denigrate gays to a second-class status before the law, at least as far as marriage contracts are concerned. The concept of blind justice is meant to suggest that laws should be objective, but if the law instead sees a distinction between heterosexuals and homosexuals, it is not.

Before the law, all individuals must be afforded equal protection of their rights as stipulated in the 14th Amendment. It would therefore be unconstitutional to make any law that establishes separate legal status to individuals based on their sexual orientation. Before the law, sexual orientation is irrelevant. A murderer’s sexual orientation is no more relevant to the crime committed than is a homebuyer’s sexual orientation to a loan. The only questions the law can legitimately ask in regard to marriage are: are these two individuals of age and did they both consent?

While it seems obvious that Amendment 43 was motivated by religion, the Amendment itself makes no mention of God, so demonstrating the Amendment’s intent would be better left to a sophisticated lawyer who could make a clear case based on the establishment clause. However, the Amendment is, clearly, a violation of the equal protection clause because it does not explicitly protect the rights of gays to contract in any form of “marriage” and, secondly, because the potential allowance it implies is inherently unequal and legally baseless.

On that basis, then, Colorado’s courts should overturn the Amendment.

Our disagreement is not about Amendment 43 — we both disapprove of it — but whether it should be overturned by the courts based on the establishment and/or equal-protection clause. I think we also agree that the amendment more plausibly violates the equal-protection clause. However, I’m still going to argue that it should not be overturned even for that reason, though my argument is tentative.

In Colorado, by law the state government distributes a document commonly called the “blue book” that contains the language of ballot measures as well as summaries of arguments from proponents and opponents. The 2006 blue-book information about Amendment 43 pertains to this discussion:

Summary and Analysis

Definitions of marriage affecting Coloradans. Federal statutes define marriage as a legal union between one man and one woman for purposes of all federal laws relating to marital status. Colorado statutes define marriage as a legal union between one man and one woman for purposes of the state’s laws relating to marital status.

For a marriage to be valid under Colorado statutes, it must be: (1) between a man and a woman; and (2) licensed, solemnized, and registered according to established procedures. In addition, Colorado recognizes common law marriage between a man and a woman who live together and hold themselves out publicly as husband and wife. Common law marriages are treated exactly the same as licensed marriages.

Legal effects of marriage in Colorado. The marriage relationship in Colorado provides spouses with a number of legal rights, responsibilities, and benefits, including:

* collecting benefits such as pensions, life insurance, and workers’ compensation without being
designated as a beneficiary;
* jointly incurring and being held liable for debts;
* making medical treatment decisions for each other;
* protection from discrimination based on marital status in areas such as employment and housing;
* filing income taxes jointly; and
* ending a marriage and distributing property through a legal process.

Arguments For

1) The public has an interest in preserving the commonly accepted definition of marriage. Marriage as an institution has historically consisted of one man and one woman and, as such, provides the optimal environment for creating, nurturing, and protecting children and preserving families.

2) A constitutional amendment is necessary to avoid court rulings that expand marriage beyond one man and one woman in Colorado. In Massachusetts, a statutory definition was not sufficient to prevent a court from requiring the state to recognize same-sex marriages. Any change to the definition of marriage should be determined by the voters, not judges.

Arguments Against

1) Language that limits marriage to opposite-sex couples does not belong in Colorado’s Bill of Rights, which generally guarantees individual rights. Amendment 43 may be unconstitutional because it denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.

2) Adding the proposed language to the constitution is unnecessary because there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman. Additionally, federal statutes define marriage as between one man and one woman for purposes of federal laws.

I’m not finding much here relevant to the establishment clause. While I think the “arguments for” are faulty, I also think that they are separable from religion.

So what about the equal-protection clause? The second “argument for” claims that the goal is to prevent the courts from overturning state law. And, as an addition to the state’s Constitution, Amendment 43 would restrict the action of state-level courts. But it would not stop federal courts from tossing it out on equal-protection grounds.

The first “argument against” expressly raises the matter of equal protection, claiming that Amendment 43 “denies same-sex couples and their children the legal benefits and protections that are available to married couples and their children.” However, the second argument points out that “there is already a statutory ban in Colorado on any marriage that does not consist of one man and one woman.”

As discussed previously, Amendment 43 does not seem to restrict “domestic partnerships” for gay couples. Thus, if a court were to intervene on equal-protection grounds, I think the more likely route would be for the court to require the state to allow for “domestic partnerships” in statute.

I have suggested that, regardless of the position of the courts, the legislature should provide for “domestic partnerships” through statute.

Would this, as Puzycki argues, still violate the equal-protection clause? I remain unconvinced.

Puzycki claims that offering “marriage” contracts for heterosexual couples but “domestic partnership” contracts for homosexual couples would create separate status for the two, and “‘separate’ implies inequality.” However, unlike segregated schools, having two titles for contracts of romantic unions would not physically separate heterosexuals from homosexuals. The only difference that I can see is that the contract would have a different title on top, which doesn’t strike me as much of an imposition.

I don’t want to fall into the trap of failing to take the principled stand on this one. But I just don’t see any significant difference between “marriages” and “domestic partnerships” for gay couples. Why fight for eliminating a distinction that doesn’t matter? Adding “domestic partnerships” via statute would be a lot easier than removing Amendment 43 and instituting “marriage” for gay couples. As far as I can tell, we’re not even talking about a “whole loaf” versus “half of a loaf” here; we’re talking about the same loaf in a differently-labeled wrapper.

8 thoughts on “Further Discussion of Gay Marriage

  1. Ari

    I promised Puzycki the final word, which follows:

    Regarding the 2006 blue-book information, it would appear that Colorado failed to compile a complete summary of arguments against Amendment 43. As a resident of New York, I am not familiar with the marriage statutes of Colorado beyond your excerpts, but I would go further to extend my arguments against Amendment 43 to the statutory definition of marriage, at both the state and federal level. Ultimately, what I think is necessary is some sort of Supreme Court ruling to recognize that the Constitution already protects marriages/domestic partnerships for consenting adults. Basically, this ruling would recognize an existing individual right while rejecting the “states’ right” to determine whose right to marry it can abrogate. My argument for why I think the Constitution already protects marriage rights is based on the Ninth Amendment, which reminds us that the Bill of Rights does not enumerate every right retained by the people, including the right to marry. Of course, the protection of this right (and every other) is recognized formally in the 14th Amendment.

    Finally, while you are right that having two titles for romantic unions would not physically separate heterosexuals from homosexuals, it does conceptually separate them from each other–which I think is fine if we’re talking about sexual orientation, but not in terms of status before the law. “Marriage” and “domestic partnerships” might each be whole loaves, but one is whole grain and the other plain white. Why is it necessary to make this distinction? What is the legal basis for it?

    Thanks for your considerate responses to the issues I’ve raised. I look forward to your future posts.

  2. Brian

    Stop arguing over whether marriage licenses should be granted solely to heterosexual couples or not. By doing so you are arguing under the false premise that the government should be a third, hidden party to a marriage contract. The only jurisdiction the government needs is the enforcement of a property contract (e.g. a prenuptial agreement) should one exist in regards to property division, inheritance, guardianship, etc. (In the absence of a contract, the government can fall back on common law and established precedence.)

    Bottom line… the government has no business in determining who can and can’t get married as long as the parties involved can legally consent to a contract. If you know your history, marriage licenses were originally established in the 1920s as a means of preventing one group from marrying another, i.e., interracial marriages. Remember a license implies permission for an action that would otherwise be deemed illegal. (In contrast, a certificate is a recognition of a state of being, e.g. birth certificate.) Marriage licenses are one of a long string of miscegenation laws that stretched back to 1664 until as recently as 1967. Marriage licenses were born from discrimination, and discrimination is happening yet again where a vocal segment of the public co-opts the government to promote their agenda.

    The justification for Amendment 43 or similar legislation elsewhere, is irrelevant. The end effect is the same—a group of people is prevented from making a contract that others freely can. You and Puzycki quibbling over what Constitutional amendments apply is a waste of time. It’s discrimination, plain and simple.

    The unfortunate part is that the government and tax payers have a financial incentive for keeping marriage licenses now that they’ve been established, regardless of whether they should be around or not. All these so-called arguments would be moot if marriages would go back to being private contracts with or without religious rubber stamping like they were for centuries. People are so short-sighted when they can only see as far back as their first birthday, if that.

  3. Ari

    I have not committed myself to a marriage “license,” only a marriage contract. Contracts must by their nature be enforced by the government (ultimately). As the text regarding the amendment makes clear, Colorado already accepts “common law” marriage for heterosexual couples — but not for homosexual ones.

  4. brian

    Yes contracts are to be enforced by government, but the government should not act as gate-keepers and stand in the way of parties who wish to enter one if they do so willingly and competently. And placating the minority with an “equal” alternative is not a solution because as Puzycki has already pointed out, separate but equal is anything but. I voted against Amendment 43 and in favor of domestic partnerships, not because I wanted domestic partnerships, but the absurdity of separate but equal contracts would’ve been plain to see had people been forced to deal with it on a day-to-day basis.

    Government should just step out of the marriage business altogether and tax individuals, not couples. People are then free to enter the domestic partnership contracts they want. They can call it marriages, civil unions, or what have you, but it will all be referred to as marriages colloquially and perhaps as domestic partnership in official documents. Religious organizations are free to recognize these contracts or not because their recognition is irrelevant because their views are only valid in their organization (though there are evangelists who feel otherwise). Some people may not be happy with that, but at least no one is left with the short end of the stick. Either the government bars no one from marrying who they want or they don’t have a say in the matter at all. Either way, Amendment 43 stands in the way, and either must be repealed through legislative means or through a state vote. If left to the people, I hope we don’t have to wait three generations to fix it, let alone three centuries.

  5. Anonymous

    I strongly support the idea of removing the concept of marriage from government completely. Although I think it would take a lot of work to take marriage records out of the federal government and state governments hands, I think this is really the best way forward in the debate of same sex marriage. Such a direction could also garner support from Mormons or other religious groups who see it as their right and sometimes as their duty to be able to maintain more than one spouse. Where does anybody get the nerve to try to restrict other free peoples right to engage in these personal relationships.

    For those who are unaware, the Republican Party has opened up a new web forum for submitting ideas to rebuild the party. I suggested such an idea as described above and it could use as much support as possible to try to get signal to the party that people want this type of sensible solution from government.

    Separation of Marriage and State
    http://ideas.rebuildtheparty.com/pages/general/suggestions/66509

  6. Anonymous

    I strongly support the idea of removing the concept of marriage from government completely. Although I think it would take a lot of work to take marriage records out of the federal government and state governments hands, I think this is really the best way forward in the debate of same sex marriage. Such a direction could also garner support from Mormons or other religious groups who see it as their right and sometimes as their duty to be able to maintain more than one spouse. Where does anybody get the nerve to try to restrict other free peoples right to engage in these personal relationships.

    For those who are unaware, the Republican Party has opened up a new web forum for submitting ideas to rebuild the party. I suggested such an idea as described above and it could use as much support as possible to try to get signal to the party that people want this type of sensible solution from government.

    Separation of Marriage and State
    http://ideas.rebuildtheparty.com/pages/general/suggestions/66509

  7. Ari

    Marriage is a type of contract, and thus government must be involved in it, as it is involved in the arbitration of any sort of contract.

    However, a marriage is a particular sort of contract involving a romantic relationship between two people; for reasons I’ve discussed, marriage is not a sort of agreement suited for more than two parties.

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